| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2014] NZERA Christchurch 189 |
| Hearing date | 11 Nov 2014 |
| Determination date | 21 November 2014 |
| Member | H Doyle |
| Representation | R G Kluge (in person) ; J Crosbie (in person) |
| Location | Christchurch |
| Parties | Kluge v Crosbie t/a Operative Brick & Block |
| Summary | JURISDICTION – Whether applicant employee or independent contractor – ARREARS OF WAGES AND HOLIDAY PAY – Applicant sought arrears of wages and holiday pay – Deduction from wages – Whether applicant owed respondent money – Whether applicant sent away after reporting for work on final day – Brick layer |
| Abstract | AUTHORITY FOUND –;JURISDICTION: Parties had no common intention about whether applicant employee or independent contractor. Minor fluctuations in payments to applicant more consistent with employment relationship. Applicant effectively supervised most of the time. Applicant worked when instructed by respondent and not able to choose whether to turn up for work. Control test favoured employment relationship. Applicant’s work integral part of respondent’s business. Applicant supplied some tools but wore uniform and used electrical tools supplied by respondent. Integration test favoured employment relationship. Form of taxation supported contractor relationship but applicant not paid by result and had no means to increase income. Applicant not in business on own account. Industry practice not helpful. Applicant employee.;ARREARS OF WAGES AND HOLIDAY PAY: No dispute applicant owed money for working three days. Applicant’s admission in statement of problem that money owed to respondent constituted written consent to deduction from wages. Respondent entitled to deduct sum conceded by applicant to be owed from arrears of wages. No order for additional amount claimed by respondent. Likely applicant attended work and sent away on final day. Applicant entitled to payment for final day. Applicant entitled to payment of holiday pay. Respondent to pay applicant $340 arrears of wages and $903 arrears of holiday pay. |
| Result | Applications granted ; Arrears of wages ($340) ; Arrears of holiday pay ($903.60) ; Disbursements in favour of applicant ($71.56)(filing fee) ; No order for costs |
| Main Category | Jurisdiction |
| Statutes | ERA s6;Wages Protection Act 1983 |
| Cases Cited | Bryson v Three Foot Six Ltd (No 2) [2005] ERNZ 372 ; [2005] 3 NZLR 721 |
| Number of Pages | 8 |
| PDF File Link: | 2014_NZERA_Christchurch_189.pdf [pdf 165 KB] |